Feds Maintain Crackdown Options After ‘Sanctuary’ Ruling

Legal experts note decision still allows administration to cut funds for cities that violate federal law

The media and local officials who challenged President Donald Trump’s executive order targeting “sanctuary” jurisdictions were quick to paint a court ruling Tuesday as a total and complete defeat for the administration.

But legal analysts said many missed nuances in U.S. District Judge William Orrick’s ruling. The judge made clear that the federal government, as long as it follows proper procedures, can cut off funds from specific grant programs that require recipients to follow immigration law. The judge ruled that the Trump administration could not take more expansive actions suggested by the broad language of the president’s January executive order.

“I think they didn’t actually lose the case. I think they lost an imaginary case.”

“All the media headlines are completely misinterpreting what happened,” said Hans von Spakovsky, senior legal fellow at the Edwin Meese Center for Legal and Judicial Studies at the Heritage Foundation. “I think they didn’t actually lose the case. I think they lost an imaginary case.”

Von Spakofsky noted that Justice Department lawyers said in court that the administration intended only to target three federal grant programs on narrow grounds. The judge wrote that the text of the executive order and the president’s own statements suggested the administration intended to withhold money from other programs to sanctuary jurisdictions without defining what constitutes a sanctuary policy.

Dale Wilcox, executive director and general counsel of the Immigration Reform Law Institute, said Orrick’s ruling probably was excessively broad and included language that was sure to please the plaintiffs, San Francisco and Santa Clara counties.

“I understand why they are running a victory lap,” he said.

At the same time, Wilcox said, the judge did not go as far as some have suggested. The Justice Department earlier this month put eight cities on notice that they were jeopardizing eligibility for money from the Edward Byrne Memorial Justice Assistance Grants Program, which helps pay for law enforcement personnel, training, equipment, and supplies.

Cities receiving letters included Chicago, New Orleans, Philadelphia, Las Vegas, Miami, Milwaukee, New York, and Sacramento, Calif. That follows action taken by former Attorney General Loretta Lynch warning 10 jurisdictions that they would lost grant funding by this June if they did not certify that were complying with federal immigration law.

Those actions can proceed, Wilcox said.

Lynch started the process of identifying recalcitrant jurisdictions and threatening to cut off funds as the behest of Rep. John Culberson, a Texas Republican who chairs the Subcommittee on Commerce, Justice, and Science.

Jessica Vaughan, director of policy studies as the Center for Immigration Studies, said Orrick’s decision will not interrupt that process.

“If anything, it endorses that,” she said. “That can actually be read as an endorsement of what John Culberson has been trying to do.”

This month’s warning letter by Alan Hanson, the acting assistant attorney general for the Justice Department’s grant-making arm, cited a federal statute that prohibits cities and counties from adopting policies that interfere with the ability of police or sheriffs to communicate with federal immigration authorities about the status of prisoners in their custody.

The Trump administration focused on the parts of the ruling with which it disagrees. A White House statement argued that the “rule of law suffered another blow as an unelected judge unilaterally rewrote immigration policy” and added that city officials who write sanctuary policies “have the blood of dead Americans on their hands.”

Trump himself was calm during a ceremony for an executive order signing on Wednesday. Asked by a reporter if he was surprised by the ruling, he said, “I’m never surprised by the 9th Circuit. As I said, we’ll see ’em in the Supreme Court.”

Wilcox said there are good appeal issues for the administration. One involves Orrick’s contention that it is likely unconstitutional for the federal government to punish jurisdictions that refuse to hold illegal immigrants at the request of Immigration and Customs Enforcement officials. Many jurisdictions refuse to honor co-called “detainers” issued by ICE.

“I don’t believe any court has ruled as such before,” he said. “Detainers are a huge issue right now.”

Congress could remove doubt by passing a law that explicitly makes compliance with detainer requests a condition of grant funding, Wilcox said.

"That's probably the correct route to go," he said. "The best of all possible routes is legislation."

Vaughan said sanctuary city officials often falsely cast the federal government's goal as having local police actively searching for illegal immigrants and enforcing immigration law. She said ICE wants only basic cooperation but added that the false narrative encourages other jurisdictions to adopt similar sanctuary policies.

"It creates a lot of fear and hysteria in communities … They're reacting to an overreaction," she said.